Tagged: political corruption

On Monday, June 27, 2016, politicians and their friends breathed a collective sigh of relief when the United States Supreme Court unanimously vacated the conviction of former Virginia governor, Bob McDonnell. The decision, authored by Chief Justice John G. Roberts Jr., narrowed the definition of an “official act” and what it means in the context of bribery and honest services fraud. As a result, ostensibly politicians will be able to more freely provide favors to others.

McDonnell and his wife were convicted on charges of honest services fraud and Hobbs Act extortion in connection with their acceptance of $175,000 in loans and gifts from the chief executive officer of a nutritional supplement company. In exchange for the monies, the government alleged that McDonnell committed “official acts” in his capacity as governor, to facilitate Virginia’s public universities to perform research studies on the CEO’s nutritional supplements. The government alleged these “official acts” included hosting and attending events, and contacting and promoting the CEO’s products to other government officials. McDonnell v. United States, 579 U.S. __ (2016) at 10. Although McDonnell was found guilty at trial, the Supreme Court vacated the conviction, which hinged on the definition of an “official act.”

Under 18 U.S.C. § 201, the statute that proscribes the bribery of public officials, an “official act” is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”

First, the Court concluded that the terms “cause, suit, proceeding or controversy,” “connote a formal exercise of governmental power, such as a lawsuit, hearing, or administrative determination.” McDonnell, 579 U.S. __ at 20. The Court held the terms “question” and “matter” are similar in nature to a “cause, suit, proceeding or controversy,” and therefore, cannot be broadly applied. Second, the Court held that the requirement in 18 U.S.C. § 201(a)(3), stating that the question or matter must be “pending” or “may by law be brought,” before “any public official,” suggests that it is a matter “that is relatively circumscribed – the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete.” Id. at 22. Therefore, the Court held that “[u]nder that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’” Id. at 19.

What does this mean for the future of political bribery and honest services fraud cases? It narrows the reach of the statute. If an “official act” must be a formalized exercise of power, on a question or matter that can be tracked for progress, arguably a politician may now provide favors in a more informal, tempered way. Therefore, McDonnell is likely to positively impact politicians and other government officials who dole out favors to those who provide them gifts and other benefits. Understandably, and especially in our currently unstable political climate, lax interpretations of bribery statutes are not likely to go over well with the public.

On the other hand, however, McDonnell does tenuously open the doors for more honest and free-flowing communications between government officials and the individuals they represent. As Chief Justice Roberts states:

[t]he basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns – whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm…. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic recourse.

Id. at 22. While it is safe to say bribery and honest services fraud are exactly what keeps ordinary citizens from “participating in democratic recourse,” McDonnell nonetheless gives politicians and government officials a chance to rise to the occasion. If these types of “unofficial” favors are truly as innocuous as politicians claim, now is the time for them to prove it. Prove it is not simply a quid pro quo. Prove it is not a quick cash grab. Prove it is not only those with wealth and influence that you seek to help. Prove it, as Chief Justice Roberts states, embodies that you genuinely want to appropriately help all constituents.

Interestingly, the federal court has postponed Sheldon Silver’s surrender date pending the Supreme Court’s decision in United States v. McDonnell. Read a recent post by Prof. Bennett L. Gershman on the pending appeal titled Corrupt Acts, Political Favors, and the McDonnell Case. Virginia Ex-Governor McDonnell appealed his bribery conviction after jury found him guilty of receiving frequent and multiple gifts from Jonnie Williams, head of a dietary supplement company. The statute requires that a public official “corruptly received anything of value personally in return for being influenced in the performance of any official act.”

McDonnell appealed the conviction citing routine political conduct, being accessible to its constituents, lending a friendly ear, and even arguing that “political favors were political speech protected by the First Amendments.” Prof. Gershman comments on the Justices’ behavior during the arguments pointing out that although Justice Breyer appeared “troubled by the statutory term ‘influence'”, its definition, meaning and application, Justice Kennedy, on the other hand, appeared to “buy McDonnell’s arguments.”

How will the Court’s decision in McDonnell, a decision watched by many across the country, affect the results of Sheldon Silver’s pending appeal?

Right on the heels of the highly publicized conviction of former New York Assembly Speaker, Sheldon Silver, former New York State Senate Majority Leader, Dean Skelos, and his son, Adam Skelos, were found guilty on federal corruption charges, including bribery, extortion, and conspiracy.

Dean Skelos used his position of power and authority to secure his son, Adam, consulting work and “no show” jobs at a real estate firm, environmental technology company, and a medical malpractice insurer. Adam netted approximately $300,000 from his father promising employers, among other favors, “preferential legislative treatment,” as one of the “three men in the room” that determine the state budget. Despite the easy monetary windfall he received from his father’s connections, Adam was indifferent, and oftentimes downright belligerent, at the suggestion that he should actually work at these jobs. Christopher Curcio, Adam’s supervisor at the medical insurance company, recalled Adam’s response to Curcio’s request that he log in some hours in the office. “He said, ‘Guys like you couldn’t shine my shoes…If you talk to me like that again, I’ll smash your f–kin’ head in.” After a slew of overwhelming evidence, including cooperating witnesses, emails, and wiretaps between the father and son duo, a jury found both men guilty of all eight counts after a total of eight hours of deliberation.

The conviction was a huge victory for the Southern District of New York’s United States Attorney, Preet Bharara, who tweeted, “How many prosecutions will it take before Albany gives the people of New York the honest government they deserve?” Bharara’s question is one that many New Yorkers have asked over the years and optimistically, it looks like it may be answered soon.

While there have been missteps during the prosecution of corrupt political figures in Albany – the Skelos investigation was commenced by Governor Andrew Cuomo’s anticorruption panel, the Moreland Commission, which was created in July 2013 but subsequently disbanded nine months later – the trial and conviction of the Skeloses, and its temporal overlapping with Sheldon Silver’s trial, suggest a strong change in the tides for the United States Attorney’s Office. While drug offenses remain the most frequently prosecuted crimes in the United States federal courts, accounting for 31% of all defendant filings in 2014, there is also a steady decrease in the prosecution of these crimes. Drug offense prosecutions have dropped approximately 14% last year, while immigration offenses, the second most frequently prosecuted crime in federal court, declined by 8%. The Southern District of New York also boasts a shockingly high conviction rate across the board – over 95% of all criminal cases result in a plea of guilty. In light of their conviction rates and the steady decline of the two more frequently prosecuted federal crimes, it is fair to assume that the Southern District not only has the resources to take on Albany corruption, but also plays to win.

Just as immigration and drug offenses have been the crux of the Southern District’s prosecution strategy for decades, it seems as though the Skelos and Silver trials are ushering in a new era where political corruption is at the forefront of concern. Hopefully, the Southern District (and by extension, all federal district courts) can use these convictions as encouragement for a task that is well within its powers – in the words of Bharara, to give the people of New York an honest government.

deal-making has long been done in Albany by ‘three men in a room’ (the governor, the State Assembly speaker and the State Senate majority leader), who work in secret and without accountability to decide [the states] most vital issues.

On January 21, 2015, the Former Speaker of the New York State Assembly Sheldon Silver, Assemblyman since 1976 and continuously re-elected speaker since 1994, was indicted on several criminal corruption charges using his political power and influence that netted him $4 million in payoffs.

Mr. Silver, a Democrat from the Lower East Side of Manhattan, was accussed of steering real estate developers to a law firm that paid him kickbacks. He was also accused of funneling state grants to a doctor who referred claims to a second law firm that employed Mr. Silver and paid him fees for referring clients.

Mr. Silver has resigned from his position as Speaker and is currently awaiting trial to defend himself against the federal charges. The exposure of Mr. Silver’s conduct brings Governor Andrew Cuomo’s termination of the Moreland Commission back into the spotlight. The anti-corruption panel was set up to investigate public corruption in New York State and was disbanded after it began looking at the behaviors of certain law firms tied to the governor and Mr. Silver.

Amidst all the public corruption and political misconduct in New York State, the question becomes – can we trust our elected officials? Regardless of political party, can the citizens of New York rely on politicians to uphold their offices with honesty and integrity? Do we really know if our representatives have the public’s interest at heart when they are conducting “business” behind closed doors? Given the recent developments the answer appears to be NO.

The apparent corruption in New York may engender a strong grass-roots movement for a State Constitutional Convention to assist in revamping our political system. Every 20 years, the New York Constitution mandates voters to decide whether to hold a statewide convention to change or amend the constitution and the government. The 2017 ballot will ask the voters if a State Constitutional Convention should be held. Most politicians oppose a constitutional convention because

it is feared that a convention might take steps to diminish the legislature’s institutional power or incumbents’ chances of re-election.

Citizens of the state with honest motives, ethics and morals would have the opportunity to run for delegates for the Convention to redesign the New York State government. While many obstacles would be met if a Constitutional Convention were to take place, it is a legitimate opportunity to rid the state of corrupt politicians.

Action should be taken in order to change the New York political system and restore the integrity of the State. If nothing changes, nothing changes; public corruption and political misconduct will continue to run rampant within our state and voters will only have themselves to blame.